Employment Law Update: California Supreme Court Limits 'Kin Care' Law

By Teresa R. Tracy

For many years, California Labor Code section 233 has required that any employer who provides sick leave for employees must allow an employee to use “an amount not less than the sick leave that would be accrued during six months at the employee's then current rate of entitlement” to care for a covered family member. The law did not directly address employer policies that allowed for indefinite accrual, but there was the possibility that the law required an employer with such a policy to allow indefinite time off to care for a sick child, parent, spouse, or domestic partner.

Thus, employers have routinely assumed that kin care leave was exempt from an attendance policy that included discipline for excessive use of sick leave, and had to be excluded from these policies like FMLA and CFRA leaves are.

The law has teeth, in that California Labor Code section 234 prohibits an employer from disciplining an employee for using kin care leave under section 233, or otherwise treating kin care as something that could lead to discipline. Furthermore, section 233 itself provides that an employee who is denied leave in violation of this section is entitled to reinstatement and actual damages or one day's pay, whichever is greater, and to appropriate equitable relief.

The California Supreme Court recently clarified the interplay between section 233 and an unlimited sick leave accrual policy in McCarther v. Pacific Telesis Group. It held that the kin care statute only applies to traditional sick leave policies where an employee accrues a measurable, banked amount of sick leave during the year. An employer who provides unlimited sick leave does not have to provide employees with paid kin care leave. It also appears from the court’s discussion that an employer who provides indefinite sick leave is not restricted by Labor Code section 234.

The employer in the case before the court had a union contract that allowed employees to take five paid sick days in any seven-day period. Once they returned to work, even for a day, they would again be entitled to another paid sick leave period of up to five days in a row. As a result, an employee could take an indefinite and almost unlimited number of sick days in a six-month period. The plaintiffs were absent to care for ill family members; they were neither paid nor disciplined for using these days.

The practical implications of the decision are:

- California law does not require an employer to provide sick leave. Current federal law does not require sick leave either, although some local jurisdictions have provisions that require paid sick leave for certain employees.

- If an employer decides to provide paid sick leave with an accrual rate, kin care leave must also be provided, and this leave should continue to be excluded from attendance-related discipline in the same manner as FMLA and CFRA leaves.

- An employer who decides to provide unlimited sick leave can do so, and need not provide kin care under Labor Code section 233. Although the California Supreme Court did not specifically rule on the ability to discipline an employee for excessive use of kin care, the Supreme Court’s discussion suggests that an employee with an unlimited sick leave policy could still discipline an employee under its policy for use of kin care time off.


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